Latin Justice Systems Come of Age

While fair elections, a free press and open markets have taken root throughout Latin America during the last two decades, one crucial branch of democracy has long withered: an equitable justice system.

In the last six months, however, a burst of legal actions against once untouchable Latin American despots has provided the first, tentative signs of growth of a politically independent judiciary.

From Mexico to Chile, no fewer than seven countries have begun trials against former strongmen. Ex-presidents and dictators, torturers and military henchmen, corrupt lawmakers and judges have been called into court to account for their actions.

“The whole message is that . . . justice is possible, that it’s a real option,” said Jose Miguel Vivanco, executive director of Human Rights Watch/Americas. “The region is waking up.”

The arrest little more than a week ago of former Peruvian spymaster Vladimiro Montesinos is only the latest sign of a stunning change in a part of the world where the rich and powerful have long killed, tortured or robbed with little worry about the consequences.

Last month, Argentine judicial officials ordered the surprise arrest of former President Carlos Menem, 70, a freewheeling politician who governed from 1989 to 1999 and was arrested just two weeks after he married a former Miss Universe 35 years his junior.

Menem was placed under house arrest while a panel of judges investigates his alleged involvement with the illegal smuggling of $100 million worth of arms to Ecuador and Croatia between 1991 and 1995.

Menem’s arrest came the same week as two momentous events in Guatemala: A tribunal convicted a former intelligence chief of the murder of Bishop Juan Jose Gerardi, and a group of indigenous Maya Indians filed a genocide lawsuit against former dictator and current congressional President Efrain Rios Montt.

Human rights groups and legal experts have greeted the sudden advances with a mixture of joy and caution, warning that there is still a long way to go before anyone can trust the justice systems of Latin America.

For one thing, in many countries, elected officials enjoy immunity from prosecution, often even after they leave office, a mind-boggling concept for those accustomed to the rule of law.

For another, most Latin American countries use an antiquated judicial system in which nearly everything--from the filing of charges to conversations between prosecutors and the accused--is done in writing. Trials can drag on for more than a decade.

Recent Successes Seen as a Tiny Step Forward

Although some countries, such as Honduras and Colombia, are in the process of converting to more confrontational and less opaque judicial systems that resemble the U.S. model, most analysts believe that the current environment of judicial successes represents a tiny step forward, not a permanent reality.

“It’s an opportunity, nothing else,” said Carlos Basombrio, the director of the Legal Defense Institute, Peru’s preeminent civil rights group. “There is no indication that this is permanent. There’s always a risk that we’ll go back and repeat the same mistakes of the past.”

By most accounts, Latin America’s long journey toward justice began after the breakup of the Soviet Bloc, as Cold War tensions began to subside.

As democracies became the order of the day, those interested in justice began to rally against a single problem: impunity. Unlike in the past, the new regimes tolerated such protests, although they seemed in no hurry to comply.

Nonetheless, the more relaxed atmosphere enabled human rights groups to begin freely organizing legal and civic campaigns.

During proxy wars in Central and South America in the 1980s, right-wing governments saw human rights activists as annoyances, or, worse, tools of the left. Thousands were beaten, tortured and killed. Today, human rights workers still face hazards--they are routinely kidnapped and killed in Colombia, for instance--but the intimidation is less than it was.

“There have been spaces opened up, spaces won through struggle,” said Paul Seils, the legal director of the Center for Human Rights Legal Action in Guatemala, which is overseeing the genocide lawsuit. “What you’re seeing is civil society pushing state institutions into going this way.”

If any single event sparked the flare-up of judicial actions against former rulers, however, it came in the fall of 1998, after an Amnesty International worker in Britain saw a brief item in the social pages that former Chilean dictator Augusto Pinochet would be visiting the country.

The news traveled to Spanish Judge Baltasar Garzon, who asked Britain to extradite Pinochet to Spain for trial on charges related to the disappearances and killings of Spanish citizens during his rule in Chile. To the surprise of many observers, Britain took the request seriously and held hearings to determine whether Pinochet was extraditable.

Although Britain eventually denied the request, citing Pinochet’s poor health, the hearings did several things. First, they brought to the forefront the idea of “universal jurisdiction”--that some crimes are so awful, and such an affront to humanity, they may be tried in any court in the world, no matter where the act took place.

In February, human rights groups successfully employed that concept in winning the extradition from Mexico to Spain of Ricardo Miguel Cavallo, a former Argentine navy officer accused of terrorism, genocide and torture during Argentina’s “dirty war” in the 1970s and ‘80s. The decision is under appeal by Cavallo’s attorneys.

The Pinochet hearings also sent a message to Latin American jurists that without action, they could face the embarrassment of having their own criminals tried elsewhere.

And, finally, in the broadest sense, the hearings shattered the concept that former dictators--Pinochet being perhaps the prototypic Latin American strongman--were beyond the reach of justice.

“Impunity was no longer the rule,” said Vivanco, the Human Rights Watch/Americas executive director.

Prosecutors and judges face enormous obstacles to completing what they have begun. Justice systems struggle against an overwhelming wave of ordinary crimes. Underfunded and understaffed, courts face tremendous backlogs. In Colombia, only 5% of homicide cases wind up with convictions.

But the biggest obstacle may be the complexity of the cases themselves, which have legal hurdles that would be daunting even to the most sophisticated and well-established justice systems.

Consider, for a moment, Montesinos, who videotaped himself bribing and threatening an astonishing number of leading figures in Peru’s courts, Congress and media.

There are more than 52 different cases against Montesinos, ranging from money laundering to drug trafficking to organizing death squads. Many of the cases involve other people, who are represented by their own lawyers.

Should the cases be combined? And if they are, would each co-defendant have the chance to present his or her own defense? And what judge could keep track of hundreds of charges spanning the decade that Montesinos ran the Peruvian spy agency?

The trial “might have to be in the national stadium,” said Luis Lamas, a legal analyst.

Even having in hand more than 2,000 taped encounters as possible evidence doesn’t guarantee an easier trial. The so-called Vladivideos were presumably made without the knowledge of those being taped and thus may be not allowed in court.

Uncertainties in Case Against Ex-Spy Chief

Further, Montesinos has said that he has 30,000 more videos waiting for release. Prosecutors are unsure about the tapes’ existence and whether the former spy, trained in psychological warfare, is trying to spread fear and doubt in a justice system struggling to gain legitimacy. What do the tapes contain? And who can be trusted?

Yet another issue is that Montesinos, a former lawyer who has defended some of the world’s most dangerous drug dealers, seems to have been laying the groundwork for his defense all along, based on chain of command.

He has reportedly told a panel of anti-corruption judges interviewing him that he made illegal payments but that everything he did was done under the orders of ousted President Alberto Fujimori, now in self-imposed exile in Japan.

That defense could be effective under Peruvian law, Lamas said.

“There’s a universe of possibilities that in real terms is going to make this very complicated,” he said.

Other cases face similar legal and logistical challenges. Menem, for instance, has so far refused to testify in his case. And in Guatemala, investigators are working with 20-year-old memories and an almost complete lack of documents of the alleged genocidal policies of the Rios Montt dictatorship.

“There’s this perverse burden on the people making the accusations,” said Seils, the human rights center legal director. “We have to respect the legal process. You don’t want it to be a kangaroo or a show trial. What we’re interested in is, how does the trial work out and how does it play into the development of Guatemala?”